‘Cross-examined’? How the tribunal asks questions

Introduction

When preparing a client for their benefit appeal hearing before a First-tier Tribunal, an adviser will often try to set their mind at rest by explaining that they are not on trial, are not going to be ‘cross-examined’, and that the tribunal will simply be trying to determine the facts of their case. However, there may be hearings when the style or line of questioning leaves an appellant particularly distressed. There is also the risk that inappropriate questioning could lead them to give incorrect, misleading or incomplete evidence.

The practical questions for advisers are:

• whether this situation can be avoided;
• how it can be dealt with at the height of a hearing; and
• what can be done afterwards.

This article focuses on personal independence payment (PIP) caselaw, but the same principles are likely to apply to the full range of social security appeals.

What the law says

The legislative starting point is that cases must be dealt with ‘fairly and justly’. Parties to the appeal must be able ‘to participate fully’, as far as is practicable.1 There is a wide range of reasonable questioning styles in the First-tier Tribunal, and recent caselaw confirms that a ‘brisk and business-like’ approach can be ‘entirely appropriate’, although ‘oppressive’ questioning would not.2

As one Upper Tribunal judge has put it:

‘The tribunal [has] the overriding objective of dealing with the case fairly and justly. (…) The tribunal is entitled to test the evidence of any witness who appears before it, and in particular may often have to ask the claimant difficult and searching questions. But there is no need for such questions to be asked in a confrontational manner, and doing so tends to undermine the overriding objective by inhibiting the claimant’s full participation in the proceedings rather than enabling it.’3

Caselaw also confirms that the tribunal’s approach should depend, to an extent, on who the appellant is. If the claimant is known to be a ‘vulnerable adult’, the tribunal has a duty to consider how best to get their oral evidence and ‘what would normally be regarded as an acceptable robust style of questioning [may not be] appropriate in an individual case’.4

GJ v SSWP (PIP)

In GJ v SSWP (PIP) [2022] UKUT 349 (AAC), the appellant had lost her PIP appeal in the First-tier Tribunal. On appeal to the Upper Tribunal, she argued that: ‘the medical member of the tribunal panel had engaged in oppressive questioning and cross-examination style questioning without prior warning in breach of the tribunal’s obligation to deal with cases fairly and justly.’5

The appellant argued that this led to the First-tier Tribunal making ‘irrational findings of fact, those findings being based on evidence obtained by the medical member’s oppressive questioning.’6

The appeal to the Upper Tribunal failed. Judge Wikeley, who had listened to an audio recording of the telephone hearing, found that the questioning while ‘brisk and business-like’ was ‘entirely appropriate’ and ‘consistent with the inquisitorial ethos of the Social Entitlement Chamber. It did not amount to cross-examination’.7

Judge Wikeley concluded that the appellant’s distress was ‘more because of the nature and stress of the occasion and the issues being discussed rather than a response to a style of questioning or e.g. the tone of Dr X’s voice’.8 The fact that this appeal failed does not mean that others on the same grounds are destined to fail. However, the GJ case shows the inherent difficulties in winning such an appeal. Tone and style of questioning can be very subjective. Where there has been an in-person hearing and no audio-recording, evidence could be a particular issue. Judge Wikeley also commented on the fact that neither the claimant nor her adviser complained about the style of questioning during the hearing or immediately afterwards.

RT v SSWP (PIP)

The GJ decision did not, perhaps surprisingly, mention the earlier case of RT v SSWP (PIP) [2019] UKUT 207 (AAC).

This decision concerned a claimant with autism, depression, anxiety and agoraphobia who appealed to the Upper Tribunal after what he believed was inappropriately harsh questioning by the First-tier Tribunal in his PIP appeal hearing.

In this case, Judge Poynter held that the First-tier Tribunal had made an error of law in failing to consider the Senior President of Tribunals’ ‘Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses’. That Practice Direction states that: ‘the tribunal must consider how to facilitate the giving of any evidence by a child, vulnerable adult or sensitive witness.’

Judge Poynter held that the definition of ‘vulnerable adult’ for these purposes should be read very widely and is likely to include almost every appellant in a benefit appeal. However, the tribunal’s failure to consider the Practice Direction will be a ‘material’ error only in cases where the claimant’s vulnerability would affect their ability to give evidence – eg, if they were autistic, or had relevant mental health symptoms.9

Implications for advice

Reading GJ and RT together, and bearing in mind the rule requiring cases to be dealt with ‘fairly and justly’, we might expect brisk, searching but nonconfrontational questioning for most appellants, with concessions being made for particularly vulnerable individuals. What steps can advisers take to make sure that this is what happens in practice?

Before the hearing

If your client is someone who will have particular difficulty being questioned, it is important to make a submission to the Tribunal Service well before their appeal hearing, asking the tribunal to consider the Practice Direction and adjust its questioning accordingly.

A previous Bulletin article considers effective ways to do this in practice.10

In the hearing

In GJ, Judge Wikeley commented: ‘If the Appellant’s representative thought that Dr X was stepping over a line, then the time to raise the issue was at the hearing.’8

If you represent a client at appeal and have concerns about how they are being questioned, it will be down to your judgement when and how to raise these. While difficult, it may well be appropriate to interrupt the proceedings.

After the hearing

In GJ, it was noted that the claimant had not made a complaint of judicial misconduct after the First-tier Tribunal hearing. This may have weakened the appellant’s later arguments about the appropriateness of questioning. It also meant that the panel members were not asked at an early stage for their recollection of the proceedings.

In a case where you consider that inappropriate questioning has taken place, it would make sense to make a formal complaint immediately after the hearing.

If your client then receives a decision on their appeal which you do not consider to be correct, you should request a statement of reasons, and may consider pursuing an appeal to the Upper Tribunal on the grounds tested in GJ or RT, as appropriate.